Why prosecutors decided not to file murder charges against father accused of driving his children off wharf in Port of Los Angeles

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Divers emerge from the water as debris floats to the surface where a car went off the berth and into the water at the Southern Pacific Slip, across from Ports O’ Call Village in San Pedro on April 9, 2015. Two children in the back seat drowned. (Photo by Steve McCrank, Daily Breeze/SCNG)

Hours after their Honda plunged into the murky waters off Ports O’ Call Village in San Pedro, with their two severely autistic sons strapped in car seats, Ali Elmezayen and his domestic partner, Rabab Diab, sat in a Los Angeles police interview room, unaware of both boys’ fates.

Elmezayen apparently did not know a camera was rolling when he turned to Diab and asked quietly in Arabic, “What did you tell them?”

“Nothing,” Diab said, according to a federal affidavit. “The car lost control and fell into the ocean.”

“Ok, that’s great, that’s great,” Elmezayen replied.

Later, when the mother asked if the boys were still in the hospital, Elmezayen said, “Yes, Rabab, may God compensate us for the kids. … May God give us better than them.”

It would be months before investigators learned Elmezayen lied to both police and the mother of his children about taking out seven life insurance policies on his family members, according to authorities, going on to collect more than $260,000 for the drowning deaths of the boys in April 2015.

Last week, the U.S. Department of Justice charged Elmezayen with numerous counts of fraud for allegedly lying to insurance companies, saying he deliberately killed his 8-year-old and 13-year-old sons and made it look like an accident, and that he intended to cash in on nearly $3 million worth of life insurance policies on Diab’s life, as well.

Elmezayen swam to safety and did not go back for his sons, authorities said, and Diab was rescued by a fisherman’s flotation device.

Then on Tuesday, Nov. 20, a federal grand jury returned an indictment that charged Elmezayen, of Hawthorne, with five counts of money laundering, four counts of mail fraud, four counts of wire fraud and one count of aggravated identity theft. The money laundering charges included an allegation that Elmezayen transferred $150,000 to a bank account in Egypt.

Among the evidence were numerous recorded phone calls in which Elmezayen allegedly posed as Diab, seeking assurance from the insurance companies that they would not investigate claims made two years after he took out the policies. The car plunged into the harbor two years and twelve days after he bought the last of the policies, authorities said.

Despite the suspicious activity and Elmezayen telling police that perhaps “evil was inside him that caused him to lose his mind” that day, he did not face murder charges from the Los Angeles County District Attorney’s Office.

Prosecutors rejected the murder case in December 2017, citing a lack of sufficient evidence, said spokesman Greg Risling.

The federal case could send Elmezayen to prison for the rest of his life if he is convicted of all charges, according to the U.S. Attorney’s Office.

Charge evaluation sheets from the D.A.’s office lay out the decision weighed by prosecutors. According to the documents, a combination of witness statements and a police mechanic’s analysis of a faulty brake system made them skeptical that a murder case could be proven beyond a reasonable doubt.

The mechanic inspected the car six months after the incident, noting that the brake pedal “was not operating properly and would depress all the way to the floor,” according to the document.

“He stated that he could not say whether the pedal was in that condition before it was in the water or the saltwater caused that condition,” Deputy District Attorney Janis Johnson wrote. “If the brake was in that condition before it went off the berth, he further stated that a person would have to pump the pedal several times to get a moving vehicle to brake and he could not say if doing so would stop a moving vehicle.”

Elmezayen told police one of the reasons he may have gone over the edge was because he accidentally hit the gas instead of the brake, according to the document, and Diab and a witness also said it appeared that was the case.

Combined, the factors “create reasonable doubt that the suspect intentionally went off the berth,” Johnson wrote.

The mechanic’s report was not the only hurdle prosecutors faced in proving the case, she wrote, but it was the “biggest.”

Additionally, both Elmezayen and Diab were seen sobbing in the water, the document said.

Murder charges were considered against Diab, as well.

Prosecutors noted it was suspicious that she lied to police about not working and, like, Elmezayen, did not try to save her sons in the water. But evidence showed the mother could not swim, Johnson wrote in a September 2017 charge evaluation sheet for Diab.

“This fact, taken with her not being the driver, goes against any culpability for her son’s death, despite her lies to police and any involvement that she may have had with tax fraud, immigration fraud or insurance fraud,” Johnson wrote.

Additionally. Diab was unaware of Elmezayen’s insurance payouts and became visibly upset when she was presented with evidence of them, according to the federal affidavit.

It appears the father’s wrongful death lawsuit against the Port of Los Angeles in May 2016 helped build the criminal case against him.

In an interview, LAPD Detective David Cortez, who investigated the deaths and presented the case to prosecutors, said before the lawsuit, police were aware of two insurance policies Elmezayen obtained, but that the Los Angeles City Attorney’s Office found more in the discovery process.

He said he wasn’t disappointed that murder charges were not filed because it was clear the federal case was the strongest.

“I’m just grateful the truth came out and that the case went forward and additional information continued to come in over this whole process,” he said.

Megan Barnes covers crime and public safety for the Press-Telegram. She was previously a city reporter at the Daily Breeze, where she covered the South Bay beach cities and the Palos Verdes Peninsula. Before that, she was a freelancer writing about LGBT news and her hometown of San Pedro, where she probably made your latte at Starbucks. She loves iced Americanos and Radiohead and finally got to see them live on the A Moon Shaped Pool tour. It was magical.